May 19 (1950 l RASHID AHMED fl. THE MUNICIPAL BOARD v. Municipal Board

Advocate-General of U. P. ( Shri Ram, with him), for the State of Uttar Pradesh.

#1950. May 19. The Judgment of the Court was delivered by DAs J.~I am reading the judgment of the Court. Dos]. This i§ an application under article 32 of the Con stitution of India made by Rashid Ahmed for enforce ment of his fundamental to carry on his busi to have _been completely stopped ness which is said the Municipal-- Board of K.airana. by the respondent, The facts shortly are as follows: The petitioner is an Aratia carrying on wholesale business at Kairana the District of Muzaffarnagar in (commission agent) in vegetables and fruits 11150 Das]. SUPREME COL?RT REPORT~ f 1950 J for the instalments the monopoly the Commissioner the respondent Board on there were no bye-laws of these new bye-laws coming

#1916. These bye-laws were passeJ by regulating the sale of vegetables State of Uttar Pradesh. He has been carrying on this business two years at a rented shop in Bazar Jama Masjid in the town of Kairana. Until respondent recently Board within the limits of the municipality. In March, 1949, the respondent Board published certain proposed bye .laws made under section 298 of the U.P. Municipal ities Act, the 19th April, 1949. After respondent Board on confirmation bye-laws into operation on anJ from 1st January 1950. In anticipation of effect the 21st May, 1949, for wholesale of vegetables", auctioned "the contract presumably meaning 'thereby do wholesale business in vegetables. The contract to one Habib Ahmad, who was the highest was given for Rs. 72,750 payable bjdder for three years at and in equal quarterly 31st December, respondent BoarJ notified a place near Police Post for wholesale pur.chase and sale of vegetables and fruits. The peti to carry on his wholesale tioner applied for a license Aratia business at his shop. On or the 22nd December, the respondent Board by resolution No. 188 rejected the petitioner~s application. This deci sion was. communicated to the petitioner on the 9th Feb ruary 1950. The order of the Chairman of the respond . ent Board was in these terms : "According to resolution No. 188 ·dated 22-12-49 the application of Mr. Rashid Ahmed is rejected and he be informed accordingly". respondent Board's No reason was. assigned by rejection of the petitioner's applica resolution for the learned Advocate tion. We are now informed by the the application was tor the respondent Board rejected as there was no bye-law for entertaining for. application or granting such license as was prayed The fact that the respondent Board had already auc tioned the conHact to Habib Ahmad might conceivably have had some bearing on this refusal to grant a license the 28th the meantime on in advance. On as the market 1949, Imam the petitioner. 1949, In Rashid Ahmed "· Municipal Board, Eairana Das}. S.C.R. SUPREME COURT REPORTS 569 January, the following terms :

#1950. a notice was served on the petitioner in

#1950. informed "You are liereby the 1st day of January, the Municipal have given the contract of wholesale Board, Kairana, .purchase and sale of the vegetables, which is in force It has been the city by the beat of repeatedly promulgated, through a Khakrob (sweeper) that excepting the drum, contractor of v~etables the Municipal Board, Kairana, in wholesale purchase and sale of nobody shall deal the one approved by vegetables at a place other than the Municipal Board aforesaid (i.e. the place near Police first place rost Imam). As against this, the house near kept selling vegetables by wholesale, at Jama Masjid otherwise known as Qaziwala, despite occasional verbal warnings to desist through an employee therefrom, which were conveyed tG comply, you were the Board. On your failure warned by a notice in writing, dated the 3rd January, 1950. That notice was duly served on you. But still you paid no heed. Accordingly a complaint was lodged in the against you, Court of Pargana Officer, Tahsil Kairana. The com is still pending. Now you are selling wholesale .Plaint by auction, in Jama Masjid Bazar, which is a thoroughfare. under the bye-laws, quoted above, vegetable at another place you in the requiring Your above conduct is unlawful and in contra vention of the Municipal Board's Bye-law 2 pertaining to vegetable contract. Moreover, highly prejudicial as it is to the interests of both and the Board, you are warned that after this notice has been served on you, you should cease to sell any more ffgetable in breach of the bye-laws above mentioned. Herein fail not." the contractor This notice is rather disingenous in that while it • suggests that everybody can deal in wholesale pur chase and sale of vegetables at the place approved by the Board, Imam, as we are now told by the learned Advocate the ,fact, is entirdy contrary for it is for the i:espondent BOard, i.e., at the place near Police Post 1950 Rashid Ahmed v. Municipal Board, KaiTtma Das). 570 SUPREME COURT REPORTS (1950] that place. The position, only the contractor Habib Ahmad who can carry on wholesale business at is that the petitioner cannot do any wholesale fore, the appointed marktit or at his own business either at shop where he had admittedly been doing wholesale to the bye-laws coming business for into force. the petitioner's business has been wholly stopped and he is being prosecuted for alleged breach of the bye-laws. The above notice was headed "Notice under bye-law 2 of the bye-laws pertaining to contract of vegetables." Bye-law 2 runs thus : two years prior In short, shall establish any new market or "No person pl~cc for wholesale without obtaining transaction the previous permission of the Board and no person shall sell or expose for sale any vegetable, fruit, etc., at any place other the purpose." than that fixed by the Board second bye-law the place that everybody will be but as a result of a monopoly clearly The entitled contemplates the respondent do business at in favour of · Board, the contractor Habib Ahmad having been created, nobody else can do business at that place as conceded by the learned Advocate the respondent Board. the first part of this bye-law no person can Under establish a new market or place for wholesale action wit.hout obtaining respondent Board. This ·part of the bye-law clearly the estab contemplates a new market for wholesale dealings in lishment of vegetables. The petitioner applied for this permission If it in force. but it was refused. Bye-law 2 is still section 241 (2) (a) the requires a license license except respondent Board cannot the market or on the ground that to comply with any condition It is conceded prescribed by, application. was not based on any such ground but that it was be there was no bye-law authorising the issue of any license. The Constitution by article 19 ( 1) guarantees refuse· the place where the Board may permit is established fails then under rejection of petitioner's permission or under, the Act. 1950 v. Muniripal Botmf Kairana Das]. S.C.R. SUPREME COURT REPORTS 571 to · issue the right restrictions to such reasonable is no bye-law authorising to ca.rry on trade or to the Indian · citizen as are business subject in clause ( 6) of that article. The position, mentioned it provided under bye-law 2 is that while however, for wholesale that no person shall establish a market the permission transactions in vegetables except with of the Board, the license. The nett result respondent Board in the absence is that the prohibition of this bye-law, becomes absolute. of any provision for issuing license:, the grant of a mono Further, bye-law 4 contemplates transactions poly to a contractor the place fixed as a market. Acting up, on that pro vision, the respondent Board has granted monopoly to Habib Ahmad and has put it out of its power to grant the petitioner to carry dn wholesale busi a license the fixed market place or ness in vegetables either at limits of at any other place within the municipal Kairana. This certainly is much more than reasonable contemplated by restrictions on the petitioner as are clause be void under article 13 (1) of the bye-laws would if there is no bye-law Constitution. On the other hand, then there requiring . the petitioner to take out license, can' be no stop the petitioner's business or to prosecute him. (6) of article 19. This being the position, for the respondent Board in wholesale justification to deal r" 1950, Learned counsel tor the respondent Board faintly contended that the bye-laws having come into force on i.e., before the Constitution came 1st January, the petitioner no longer had any right to into force, continue the business and, his case is not therefore, governed by article 19(1) (g). There is no substance in this argument for, if it were sound, article 19 (1) (g) would only protect persons who were carrying on business before the Constitution came into force. Pradesh Learned Advocate-General of Uttar appearing for the intervener drew our attention section 318 of the U.P. Municipalities Act, 1916, and remedy submitted that the petitioner haviJ:ig this Court should not grant any by way of appeal, writ in the nature of the prerogative writ of mandamus adequate 1950 v. Municipal Board, Kairana Das]. 572 SUPREME COURT REPORTS [1950j th.at but the powers given There can be no question or certiorari. aistence of an adequate legal remedy is ;i thing to be the matter of granting taken into consideration this Court under writs, article 32 are much wider and are not confined to issuing prerogative writs only. The respondent Board to grant a it out of its power having admittedly put there is no license and having the issue of a license, we specific bye-law authorising do not consider the local Government which the bye-laws an adequate legal is, remedy. that the appeal under section 318 in the circumstances of this case, to the fact sanctioned regard to direct redressed. We are satisfied rights have been infringed and he to have his grievance in such circumstances would be that in this case the petitioner's fundamental The proper entitled respondent Board not to prohibit carrying on the trade of wholesale dealer and commis sion agent of vegetables and fruits within limits of the Municipal Board of Kairana, except in accord ance with the bye-laws as and when framed in future the respondent according to law and further Municipal Board to withdraw the pending prosecution of the petitioner and we order accordingly. The pondents to pahthe costs of the petitioner .. the petitioner to direct ' ,. Petition allowed. Agent for the petitioner : Narmitlal. Agent for the opposite party : Tarachand Bri; mohanlal. Agent for the Union of India : P. A. Mehta. Agent for Uttar Pradesh : Tarachand Bri; mohan/al.